Thursday, November 21, 2013

UPDATED 11/22: spelling, clarityFriday, November 15th, 2013
On Thursday, I received the 'advisory' from the District Attorney's office that there would be a pretrial hearing in the Mark Berndt case in Dept. 107 on Friday morning. When the district attorney's office sends out a notice like this to the media, it's a good bet that the defendant is taking a plea. Berndt, a Miramonte Elementary School teacher was arrested in January
2012 after a film processor notified police about images involving
blindfolded children. T&T had reported on the Berndt case shortly after he was arrested. I wondered if the Brown case would go first or not.

When I arrive on the 9th floor of the downtown criminal court building, there's already a large media presence waiting outside Dept. 107. I recognize a few local television on air personalities like NBC4's Toni Guinyard and Carlos Granda. Also in the crowd was a CNN reporter Lindy, who I met during one of the Spector trials.

Cameron Brown's wife Patty was waiting on a hallway bench. I made a point to say hello and tell her that she looked lovely in her wedding photo she provided for the recent Huffington Post article about her husband's case. I believe she asked me what all the media was here for and I told her it had to do with Mark Berndt, an elementary school teacher charged with lewd acts involving children that he labeled "tasting games."

A little after 8:30 AM, Judge Lomeli's bailiff (the same bailiff who was assigned to Judge Fidler's court in Spector 1), tells the group in the hall that the media will be allowed in first. We're asked to line up and show our media badges. I don't have a badge, but I'm hoping the bailiff will let me in anyway. When I get to the door I tell him I don't have a badge but that I'm recognized by the court. Thankfully the bailiff tells me, "I know you," and I'm allowed in with the other journalists.

Inside Dept. 107, we're told to sit only in the first two rows. I get a seat in the second row behind City News reporter Terri Keith and the long-time Associated Press reporter. I happened to mention to Lindy and her associate (who were sitting to my left) that I was here for another case, Cameron Brown. The gentleman to my right mentioned that his paper covered the Brown case, or rather his former associate, Denise Nix did. I have read many articles by Daily Breeze reporter Larry Altman, but this is the first time I got to meet him in person. Altman covers crime and courts for the South Bay area. I tell Altman that Nix did a phenomenal job covering the second trial closing arguments. The best I'd ever seen.8:38 AM
DDA Craig Hum arrives and checks in with Judge Lomeli's clerk, David. With all this media here and the camera crews set up in the jury box, I'm thinking that Brown's hearing will be after Berndt's. DDA Hum is chatting with an attorney in the well that I later learn is Berndt's counsel. There's lots of bustling going on in the gallery and the well. Pat Kelly from the Public Information Office is here giving instructions to the photographers in the jury box. The bailiff is chatting with the DDA on the Berndt case. Familiar faces, but I don't have names to go with them.

The first two rows in the gallery are jammed with media. Once they were filled, then the bailiff allowed the public in the last two rows. DDA Hum comes over and speaks to Terri Keith. Hum explains that he told Judge Lomeli at the last Brown hearing that the court can't do a Marsden hearing when competency hasn't been decided. Evidently Hum was wrong. The Supreme Court says you can. So Hum went back to Judge Lomeli on that issue.

8:40 AM
I learn from other journalists there were three DDA's on the Berndt case. Those of us in the second row get the names of the prosecutors from Terri Keith. If there's anyone who is a walking encyclopedia of significant cases and the names of the prosecutors on them, it's Terri Keith. DDA Gloria Marin is wearing the navy jacket. DDA Allison Meyers is in gray. DDA Darci Lanphere, wearing the green skirt, was on the case earlier but she is in a different unit now. Some of the reporters ask about the Brown case and what his hearing is for. The courtroom is packed with victim's parents, attorneys representing the families of the victims and more media. The sheriff's are setting up more chairs in the courtroom. They are even considering putting people behind the photographers and video camera in the jury box. We are told that the parents will be giving interviews on the 12th floor after the hearing.

Now Judge Lomeli's regular bailiff is addressing the media. His priority is to maintain court (comportium? decorum?). "We all know why we're here. ... My priority is the court decorum." If there are problems, the courtroom will be closed (to the public). "Those of you not in the media, no cell phones. Children, if they make noise, or you can't keep your composure, leave. ... we'll try to let you back in. ... Everyone understand?"

Now a female deputy gets up to address the crows in Spanish. Then the court's Spanish interpreter starts speaking from the far side of the room and the deputy stops.9:08 AM
Cameron Brown's defense attorney arrives and chats briefly with DDA Hum. There appeared to be a bit of a shock on Aron Laub's face when he entered, obviously unaware of the other hearing.

There are six sheriff's deputies inside Dept. 107 now. It's confirmed. The Brown hearing will be after the Berndt hearing. DDA Hum and Mr. Laub exit the courtroom.

Berndt is in an orange jumpsuit. People in the gallery sitting behind me start to weep. It's difficult to ignore the sound of their pain.

Judge Lomeli is on the bench. Counsel state their appearances for the record. Judge Lomeli asks, "I understand this is going to be a plea, is that correct?" I miss getting who answers him. Judge Lomeli asks the defendant, "Mr. Berndt, do you wish to be heard regarding sentencing at this time?" His defense counsel answers the court, "Mr. Berndt has authorized me to speak on his behalf."

"Mr. Berndt expresses his thanks to the court and the prosecutor for the utmost professionalism in the year we have been working on this." ... As you know, your honor, a case of notoriety or a high profile case, even when each side reach a decision not to speak to the media, there are leaks and innuendo, and frankly, there are misstatements. "We are here to set the record straight, " Mendrano continues.

Berndt sat looking straight ahead while his counsel spoke. Mr. Mendrano then turned to the gallery and addressed the gallery. "Mr. Berndt is profoundly sorry. ... He (has?) profound remorse for any pain and discomfort that he may have brought any victims and family members."

There are some statements about being concerned with other factors. Mr. Berndt taught for over 30 years. He was a dedicated educator, well respected by teachers and peers at school. He was loved by many. After his arrest in January 2012, Mr. Berndt received a multitude of letters from the students and (other children?). He cared for them and they cared. He cared for the many ... they cared for him. "The last thing Mr. Berndt wanted to see was 23 child victims walk to that witness stand. And he didn't want that to happen. ... He readily admits to the 23 counts. ... Close with this. ... want to be very clear about this .Mr. Berndt is apologetic and remorseful for any conduct he engaged in that brought disrespect to the school."

Judge Lomeli asks the people if they wish to be heard on sentencing. The people thank the court as to how they are handling this matter. One of the prosecutors states, "We are pleased with the defense position and are grateful that 23 children will not have to come forward." Judge Lomeli states, "It's my understanding that is the people (?) that there will be several impact statements?" The people reply, "Yes, your honor." Judge Lomeli states that they can do that now, or just before sentencing. The people state they would like it just before sentencing.

The defendant waives time for arraignment and judgement. Before the court will impose sentence, the court will turn to the people for the appropriate time to present impact statements. The people have one house keeping matter, regarding the correct spelling of a name in count 21. Judge Lomeli then addresses the defendant. He tells him that the prosecutor is going to advise him of your constitutional rights. It will require a response. To the extent you do not understand something, you must notify the court so you have an opportunity to consult with your attorney.

The people and the defense have reached an agreement of 25 years. The defendant will plea to all 23 counts.

The DDA reads the case number and asks if he understands the charges against him. "Yes," Berndt replies. The DDA mentions the agreed sentence of 25 years. It's standard language the prosecutor is reading. The defendant states he will plead "no contest" to the charges.

DDA: You have to understand those rights and voluntarily give them up. ... You have the right to have a preliminary hearing in this matter. ... The people would have to present evidence. ... Do you waive and give up this right? ... You have the right to have a trial, either by a court or a jury.

The prosecutor explains a jury trial to the defendant.

DDA: At either type of trial, the people would have to prove each and every one of these counts beyond a reasonable doubt. ... Do you understand?
MB; Yes.
DDA: Do you waive and give up this right?
MB: Yes.

The prosecutor then moves onto Berndt's constitutional rights.

DDA: You have the right to confront and cross examine the witnesses against you.

There's more of this legal language, explaining each of his constitutional rights. For each right, the defendant is asked if he understands his rights and if he is giving up that right. It's explained to Mr. Berndt that after a trial, he would have the right to an appeal.

DDA: You no longer have the right to an appeal. Do you understand that?
MB: Yes.
DDA: I have to advise you, if you are not a citizen, you will be deported. Do you understand this?
MB: Yes.
DDA: By pleading to this count, you would be in violation of (?) or probation (that may be in effect). ... You will have to serve a minimum of 85% of your sentence.

The prosecutor explains the requirements he will be under if and when he is paroled. Each and every time her replies, yes, and that he understands. He is told he will be required to pay any actual restitution. He does have a right to have a hearing to determine that restitution. It is the defendant's obligation to pay back any restitution determined by the court.The defendant will be required to provide a DNA sample and and AIDS testing sample.

The prosecutor tells Berndt that the charge is for the rest of his life. He will be registered as a sex offender. He will need to go to local law enforcement and register with them (if/when paroled). The defendant has an obligation to register in the new area if he moves. He will be required to register annually. If he fails to do so, it can be filed against him as a new and separate felony charge.
The counts are strike offenses. They are violent felonies. If the defendant violates the law, they can be used against him to increase punishment on any future crimes.

There is a possibility that, because of the nature of the crimes, the defendant can be eligible for commitment to a state psychiatric facility. If the defendant is found to be a sexually violent offender, he could spend the rest of his life in a state hospital. I believe as part of his (registration?) he will have to pay a one time fine of $300.00.

There are no other concerns and the court has no inquiries. I'm not sure who makes it, but there is a request now to take the plea. I believe it's the prosecutor who continues to ask the defendant questions.

DDA: Before I take the plea, are you pleading freely and voluntarily?
MB: Yes.
DDA: Are you pleading because you feel it is your best interests to do so?
MB: Yes.
DDA: No one has threatened or persuaded you to do so?
MB: No.

Each of the 23 counts are read. Each and every time the defendant pleads, "No contest."

After the last count, his counsel addresses the court. "Mr Berndt does agree that there is direct and indirect touching of children. However, there is no evidence of 'overt' touching of a sexual part."

At this time both counsel join in a waiver (but I miss what that waiver is). Then the impact statements are taken. Those of us in the gallery are wondering if the court has allowed the victim impact statements to be filmed. I've seen them filmed in the past, but considering the charges, they may not be. My only concern is the video camera and if it will be pointed at podium that's in front of the gallery. As a woman approaches the podium, the video camera is still aimed at the defendant.

Most likely, Judge Lomeli stated the victim impact statements would not be filmed, but they would be heard on the video recording.

The first mother steps up to the podium. It's not in my notes but I believe most of the impact statements are presented via an interpreter.

"I am the mother of one of the 23 innocent victims that Mark Berndt impacted. Mr. Berndt sexually abused my child. He is violent and disgusting. .. He fed them semen on a spoon. He fed them semen on a cookie. He intimidated the children by blindfolding them (bondage) style and placing cockroaches on their faces. ... He has destroyed my child. She suffered serious, emotional injury, emotional distress. She used to love eating cookies but now the thought of a cookie disgusts her. .. She's adverse to touching now, especially her eyes, where Mr. Berndt blindfolded her. ... No matter how much therapy she receives, she will be scarred for the rest of her life."

The prosecutor reads the second impact statement. "I could not be there today because I have to work." My notes are not clear at this point. I believe I miss the rest of the prosecutor's reading and now have a third impact statement.

"Your honor, I beg for you to do justice as the mother of two girls who were the victims of someone who may not be called teacher. He is an animal. I want justice to be done." She starts to cry as she is speaking. "I want to be just and do the right thing so that other girls don't suffer the same thing. I know that my daughter's are not going to forget what happened to them, and unfortunately their lives may not be the same as children." The emotion on this mother's face is overwhelming. "My daughters went to school to learn, and not these type of things that were done to them."

The fourth impact statement is taken, another woman.

"I want to thank you, the (honor?) God, and justice, ... the people from CBS. And if it hadn't been for them and for you, we wouldn't have found out about all of this." The woman is sobbing, outright crying. "My daughter is not the same anymore because this man, grabbed my daughter and told her everything that happened to him when he was a child. ... About this (deal?) and going into the stores and seeing movies for free. ... That he would go in and the other one would go in through the exit. ... I don't understand why the district wasn't aware of all of this. ... My daughter is clear on everything that was said about when he was a child. ... Why didn't he get psychological help? ... Why did he do this to my daughter?" The woman continues to sob uncontrollably. "I'm destroyed. My daughter is destroyed. ... No more. ... No more. ... I leave it in justice's hands, because I have no hate in my heart. I have no hate in my heart and I don't know, how the person like this, to have the opportunity to work with children like these. Innocence is the most beautiful thing that a child could have. ... How could it be that the district didn't know all of this?"

This woman's sobbing is getting to me. I'm trying to keep my own eyes from tearing up. As I type this, I'm remembering her words, her emotion and I'm right back in that courtroom, experiencing her pain. Judge Lomeli addresses the mother. "Thank you mam. And, I'm sorry."

More people in the gallery are crying, sobbing. It's like a low, continuing wail coming from the back of the gallery.

The next impact statement is taken.

"The impact this has caused on my family is devastation. I don't wish to harm anyone. ... To know the damage that has been done to my daughter, by someone who was there to educate her. I wake up every morning, asking God to give me the strength to explain this to my daughter. How can I explain to a nine-year-old that one of her favorite teachers did something like this to her? ... My life has been changed forever and my daughter's life also. The first things I was concerned about was my daughter's emotional stability. ... While I locked myself into my room and cried, what could I do to my daughter? What I will never forget, when I got the call from (?) to have my daughter checked. ... I asked myself, crying, how could that have been done to my daughter? Why didn't I notice. ... If it hadn't been for the help from the psychologist .... I'm very nervous." Judge Lomeli addresses the woman. "It's okay mam. Take your time." It's obvious the woman is very upset.

"I will try. ... It's been very hard and continues to be very hard. I want justice for my daughter and for all the children that have suffered. That's all I have to say." The court responds, "Thank you mam." Weeping continues to be heard in the gallery.

The next woman who steps up to the podium, is trying to maintain her composure as she speaks.

"I think he deserves a little bit more. I don't think he is sorry for what he's done to the kids. If he would have been sorry he would never have done that to the kids." She addresses the letters the defendant has received in jail. "I think they should give him more than 25 years." She then tells the court she thinks it should be like in the days when they had burned them in woods. No other parents can know what they've been going through. "Sometimes my daughter doesn't sleep with the light on. ... I have to cook for her. ... she won't even buy anything to do with cookies. She won't even socialize. I ask that you give him more than what he's asking."

Another statement, handed in from one of the attorneys in the gallery, a statement from an individual not on the witness list. It is handed to the clerk who then gives it to Judge Lomeli. There are no other impact statements. Judge Lomeli reads the statement then asks if there is anything further on behalf of counsel. There's nothing from the defense. Judge Lomeli asks, "Defense, do you waive time for sentence?" "So waive," is the response.

Judge Lomeli addresses the last mother who testified. "She asked that I give him more time than proposed. ... Understand that Mr. Berndt did ask (for?) less time, and the district attorney's office did go along with that. He chose to give the offer that was given to him. ... Coupled with his age ... this could amount to a life sentence. ... (The mother stated she) ... would like to see him burned to the stake, but I'm not able to do that (nor would I)."

The court agrees with the recommended sentence. The court is going to impose the following with respect to defendant's sentence.

Count 1, three years.
Counts 2 through twelve the mid-terms, 2 years each per count.
Two through thirteen amount to 22 years.
Coupled with count one, those will be (composed?) consecutive.
Counts 13 to 23 low term of three years, time less for on count 1.

I'm showing a total credit in the 656 days. He is entitled to 15% credit, will add an additional 99 days equals (759? ??) days. I know there is a request for opposing custody time. That the defendant be housed in protective custody. Obviously, that discretion lies with the sheriff's deputies (?) and how they classify the defendant. Court will make that recommendation. There is information about the victim's compensation board and that future restitution is yet to be decided. It's unknown at this time. The court will put it on the people to put it on the calendar should that situation arise. Mr. Berndt and his counsel waive his appearance at any restitution hearing.

There are more rulings about registering with local law enforcement as a life time sexual offender. There are fees for each count that the court imposes. There are specific counts where the sentences is concurrent. The prosecutor mentions something about the fines and accuracy of the fines. The prosecution moves that all photos (be received?) into evidence. There is something about dismissing allegations based on (?).

The court asks the defense if there is anything on behalf of Mr. Berndt. The defense responds, "May I have a moment your honor?" I believe there's nothing else. The court orders that the defendant is to provide DNA and print impressions. And that's it. The media files out and I stay for the Cameron Brown hearing.10:15 AM - Cameron Brown
Judge Lomeli addresses his clerk. "David, let me know when they're ready."10:30 AM
DDA Hum and Laub are now sitting at the prosecution table, having a conversation. When they're finished, Laub slides his chair down over to the defense table and waits for his client to be brought out.10:34 AM
DDA Hum and Laub are speaking to Judge Lomeli over at the clerk's desk. Judge Lomeli doesn't have his robes on and his arms are crossed over his chest. While Laub is speaking, Judge Lomeli is nodding his head.10:35 AM
Brown is brought out. He looks much the same as he did at the last hearing. His hair is cut short and he still has the ZZ Top looking beard. He also looks a bit more gaunt than the last time he was here.

I remember back in June when Brown spoke up and told the court he wanted to go pro per, Judge Lomeli told the defendant that if he wanted to represent himself, he would not be lenient.

Patty Brown took a seat in the bench row behind me. While we wait for Judge Lomeli to take the bench she makes some statements about Mr. Laub. She claims that Mr. Laub took on other clients after he was assigned her husband's case and worked those cases instead of her husbands. To me, this contradicts what I heard Mr. Laub tell the court. Several months ago, Mr. Laub told the court that Brown was his newest case. That all his other cases he has had for much longer. Mr. Laub is a court appointed attorney. The court would have instant access to any and all cases that Mr. Laub is currently assigned.

Judge Lomeli comes out and addresses counsel. "Ready?" He asks. He then goes into the back area to get his robes. I see Judge Lomeli pop a piece of muffin or pastry into his mouth as he gets ready to take the bench.

Counsel are asked to state their appearances for the record. Judge Lomeli brings up the issue of the Marsden hearing, and that DDA Hum indicated that the Marsden motion could not be heard until competency was decided. Judge Lomeli cites the relevant cases where the ruling was different. Judge Lomeli states that, "The court was inclined to hear the Marsden on the 8th." (If there was a hearing on November 8th, I missed it. Sprocket.) Addressing Mr. Laub the court asks, "I take it that between the 8th and the 15th, you had a chance to converse further with Mr. Brown?"

Mr. Laub tells the court that he withdraws his prior declaration and mentions that he filed something under seal. Brown directed Mr. Laub to make corrections to the declaration he filed with the court months ago. Mr. Laub filed a new document with addendum's. Mr. Laub met with his client on the 4th and they went through the document and prepared corrections. "At this time, Mr. Brown is prepared to sign the corrected declaration, ..." that it is now a true and correct statement.

What is left now, is the issue of competency. Judge Lomeli addresses the defendant. "I've had a chance to observe (you) ... number of appearances ... you appear to this court to be competent and your communication skills did not suffer in any way ... If the court had to evaluate Mr. Brown ... I understand Mr. Laub had a chance to interact with Mr. Brown and (discuss?) the consequences he is facing. ... "

Mr. Laub tells the court, "He said he will not talk to Dr. Knapke." I believe Laub goes onto say, "Believe he and I are able to communicate in a (?) and mutual understanding."

Judge Lomeli bases his opinion on past cases. He goes onto talk about how some defendants don't understand the rules of evidence. The defendant may want something to come in, but the court is not able to let that evidence in, due to the rules of evidence the court is bound to. "The court is inclined to reintroduce criminal proceedings." DDA Hum states that he concurs with the courts observations (about Brown's ability and competency).

There are a couple of issues that need to be addressed. The court indicated the defendant wont' speak to Dr. Knapke. I believe it's DDA Hum who asks if an inquiry can be made if he will speak to another doctor. Judge Lomeli asks the defendant, "Are you willing to speak to another doctor, not Dr. Knapke, but someone else?" Brown responds, "I've already spoken to two different (psychiatrists? psychologists?) during my incarceration." Brown seems to think this is sufficient to determine his competency. The court tells Brown, "You have to realize that was a time back. ... Those reports can't be used." Brown has to be evaluated anew. Brown is asked again if he will be interviewed by a doctor.

Brown responds, "Only if it's mandatory, otherwise it's not needed." I believe Brown is told that he can't just say yes or no, he has to interact with the doctor for a bit of time. "Are you willing to talk to someone, and have your attorney ..." find another doctor to speak to? I believe Brown responds, "I still stick to my same statement."

It appears Brown agrees to speak to a new doctor.

Judge Lomeli talks about his calendar. He's booked January through mid March. The earliest the court could hear the case is mid March or April. Laub states he is looking at his own calendar. The earliest he is available is April. Judge Lomeli comments that he would like to get this case done. I believe it's DDA Hum who states he can't predict what will happen in April. The court notes that the people have been very accommodating. I believe Laub asks again if the court would be mandating (that Mr. Brown speak to a doctor). Judge Laub states that he will reinstate criminal proceedings in abeyance in pending a report from the doctor.

A new court date of Friday, January 10th is chosen to return. Laub states that he is going to submit corrections to his declaration and it's to remain under seal.

There is further discussion about the choice of a doctor for the defendant to speak to. It's made clear to Mr. Brown that his attorney will be picking the doctor for him to speak to. The criminal proceedings will remain suspended. DDA Hum makes it clear that he won't have any input into choosing the doctor Brown speaks to. He won't even know who the doctor is.

And that's it. Brown returns on January 10th. Afterwards, Patty Brown makes a statement to me that shocks me speechless. With a smile on her face she tells me, "Now you know why Cam wouldn't talk to Dr. Knapke. It's because Hum suggested him."

I can't believe this. Brown obstinately refused to see a doctor that he had seen previously, only because DDA Hum suggested the name. A doctor that he had seen at the request of his own defense counsel before the second trial. All these months of delay are due to the defendant, and nothing else.(Note: I am working on getting my notes covering the preliminary hearing for Joshua Woodward. I hope to have them up over the weekend. Sprocket.)

2
comments:

Anonymous
said...

Too bad this is way after the fact: I remember when Cam came back to Denver for a friends wedding: He proceeded to open his suitcase and brag about all of the valuables he had stolen from peoples luggage while he worked as a baggage handler for American Airlines...Video Cameras, watches, Jewelry etc... Just goes to show you the mindset of this creep back in oh must have been 98, 99. Everyone at the wedding party was like, "Oh great Cam..So we can expect our luggage to be rifled through every time we fly AA? He just said (his standard reply) "Later..Shuuddup..No need..Later). He used to brag to me that he only had a third grade education. Seems about right considering the circumstances he finds himself in.

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